[414] As against the idea of Merewether and Stephens, that charters of municipal incorporation only began in 1439, Dr. Gross points out that such a charter occurs in 1345, that in the time of Edward the First the technical conception of municipal incorporation was familiar, and that long before the judicial conception came into being the borough had a real corporate existence, and exercised all the functions of a corporate body. (Gild Merchant, i. 93, &c.)
[415] In 1391 the Statute of Mortmain was extended to cities and boroughs. (Statutes, 15 Richard II., cap. 5.) Even when license to hold land was granted by the Crown the amount was strictly limited, and the power of refusal or of limitation was a serious consideration to the town.
[416] According to Mr. Round, London found means of annexing the shire of Middlesex instead of asking to be separated from it. (Geoffrey de Mandeville, 347-373.)
[417] We have a hint of a troublesome mode of interference with the municipal taxation in an incident in Norwich in 1268, when “the lord the King commanded all his bailiffs that, for a fine £10, which Margaret the Taneresse of Norwich made with the same lord the King, he granted to her such liberty that for the whole time of her life she should be quit from all his tallages in the town of Norwich ... for whatsoever cause they may be made. And he commanded that they vex not the aforesaid Margaret contrary to this his grant.” (Norwich Documents, pr. 1884, 9.) In any case where the tallage was a fixed sum due from the town some one else would have to pay Margaret’s share.
[418] Journ. Arch. Ass. xxvii. 478.
[419] Journ. Arch. Ass. 479. Hist. MSS. Com. ix. 241-2. Statute of Maintenance, 13 Richard II., Stat. 3. For the jealousy of the towns as to any inhabitant relying for protection on a lord outside, see p. 183, note 2.
[420] Journ. Arch. Ass. xxvii. 482. For a duel in Leicester in 1201, see Select Civil Pleas, Selden Society, p. 33. Judicial combat in Fordwich with an alien had to take place in the middle of the river Stour, the alien standing up to his middle in the water, while the Fordwich man apparently fought from a boat tied to the quay, with an instrument called an “ore,” three yards long. (Hist. MSS. Com. v. 442.) In 1200 “the citizens of Lincoln came and produced the king’s charter which witnesses that none of them need plead outside the city walls except the king’s moneyers and servants, and that they need not fight the duel because of any appeal.” An accused man answered the charges against him “word by word as a free citizen of Lincoln,” and “according to the franchise of the town” waged law with thirty-six compurgators. (Select Pleas of the Crown, Selden Society, p. 39.) For compurgation in Sandwich in 1493, Boys, 680.
With old forms of trial old forms of punishment were allowed to survive. In Sandwich, if a man failed to clear himself by compurgation of a charge of homicide or theft he was condemned to be buried alive in a place called the Thiefdown at Sandown. (Ibid. 465.) Felons were also drowned in a stream called “the Gestling”; but in 1313 a complaint was made that the prior of Christchurch had diverted the course of the stream, and that criminals could not be executed in that way for want of water. (Ibid. 664.) At Dover and Folkestone a thief was killed by being thrown from a cliff, and at Winchelsea was hanged in the salt marsh. (Lyon’s Dover, i. 231.) In others of the Cinque Port towns when a thief was taken his ear was nailed to a post or cartwheel and a knife put in his hand, he had to free himself by cutting off his ear, to pay a fine, and to forswear the town. In 1470, 12d. was paid “for nailing of Thomas Norys his ear.” (Hist. MSS. Com. v. 525, 530.)
[421] Hist. MSS. Com. viii. 407. Nottingham retained the old usage till after the fourteenth century; Records, i. 175. Exeter till 1581; Freeman’s Exeter, 119. The question may have partly turned on the form of government adopted in the town and the work required of the common assembly in which the burghers voted.
[422] It has been argued (Gneist, Constit. Communale, tr. Hippert, i. 263; v. 275) that the State created local government in the towns as a method of developing better administration, and that it was therefore only accidentally and as a secondary consequence that independence and local liberties came in the wake of this administrative system. The facts, however, of their story make it perfectly clear that municipal liberties were of natural growth, and sprang out of local needs rather than out of Court statecraft.